Becoming Justice Gorsuch | 2. The Stolen Seat

Summary

Slow Burn, Season 11, Episode 2: The Stolen Seat

Release Date: May 20, 2026
Host: Susan Matthews
Main Theme:
This episode chronicles the seismic events around the death of Justice Antonin Scalia in 2016, the unprecedented Senate blockade of President Obama’s nominee Merrick Garland, and the eventual ascension of Neil Gorsuch to the Supreme Court. Through interviews, narrative, and archival tape, the episode explores how Gorsuch’s judicial philosophy, personal style, and key rulings positioned him as both a product and disruptor of Republican court politics. The episode details the shifting judicial norms, Republican court-packing strategies, and Gorsuch’s evolution from protégé to “wild card”—with a particular focus on originalism and textualism, the 'frozen trucker case,' and the landmark Bostock decision.

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Episode Structure & Key Discussion Points

1. The Shock of Justice Scalia’s Death (01:03–02:16)

• Opening Reflections:

  • Host Susan Matthews recalls the moment with colleague Mark Joseph Stern, who was on vacation when news broke. The suddenness upends routine both for reporters and the judiciary.
  • Mark Joseph Stern: "There was one spot in our room, it was actually on the balcony where I could get WiFi... It was a crazy time." (02:02)

• Scalia’s Legacy:

  • Seen as the intellectual leader of the conservative Court, Scalia was instrumental in mainstreaming originalism and textualism and was the first faculty adviser to the Federalist Society.
  • Susan Matthews: "Scalia was also the man who helped start the new conservative movement that took off while Neil Gorsuch was still in law school." (02:39)

2. Originalism, Textualism & Judicial Philosophy (03:23–06:04)

• Intentionalism vs. Originalism:

  • Pre-Scalia, the Court considered the values behind the law. Scalia shifted the focus to what the constitutional text meant at the time it was enacted.
  • Mark Joseph Stern: "Scalia came on the court and he said...what we do is figure out how people understood this constitutional provision at the time." (03:44)
  • Neil Gorsuch: "What did the words mean to the people who ratified the Bill of Rights or who ratified the Constitution?" (03:58)

• Gorsuch’s Adoption of Scalia’s Philosophy:

  • Gorsuch was deeply influenced by Scalia’s ideas during law school and carried these principles into his caseload and decisions.

3. The "Stolen Seat": Republican Senate Blockade (09:31–12:04)

• Obama’s Garland Nomination Blocked:

  • Despite nearly a year left in his term, Obama’s nominee was refused even a hearing.
  • Susan Matthews: "They just stonewalled for months." (09:57)
  • Mark Joseph Stern: "It was unthinkable at the time, this had never been done before, to say we're just going to leave this seat open indefinitely..." (10:43)

• Election-year Politics:

  • The Republican argument: no new justice in an election year—though this standard would later be discarded.

4. The Trump Victory & the Auditions for SCOTUS (12:04–19:46)

• 2016 Election Upset:

  • Democrats, expecting a Clinton win and a liberal majority, are stunned by Trump’s victory, which secures conservative dominance on the Court.

• The "Frozen Trucker" Case:

  • Key Story: Gorsuch’s dissenting opinion in a case involving a fired trucker showcased his rigid textualist philosophy—valuing statutory text over equitable considerations.
    • Narration: “Gorsuch restates again and again which words are in the statute and which aren’t. He quotes the dictionary at the reader. His tone is weirdly rude.” (15:37)
    • Robert Federer (labor lawyer): “He was pretty hostile.” (15:05) and later, upon Gorsuch’s SCOTUS nomination: “In my mind, I thought, oh, it’s that asshole.” (17:16)

• Textualism as SCOTUS Audition:

  • Gorsuch’s frozen trucker dissent helped elevate his profile; he was soon added to Trump’s public shortlist.

5. Confirmation & Republican Norm-Shattering (19:46–27:00)

• Columbia Connections and Public Perception:

  • Gorsuch’s former classmates divided over his nomination, some celebrating shared alma mater, others disturbed by the agenda he’d vocalized since youth.
  • Liz Pleshette: “Why is this great? Because he has a degree from the same place you have a degree from...as if everybody was dismissing what Neil represented and what he had been very clear and vocalized from the age of 18 on.” (20:13)

• Republican Strategy:

  • Republicans prioritized overturning Roe v. Wade, seeking judges matching this goal. Gorsuch’s nomination fit the bill, though his polite, non-partisan persona masked the ideological shift.
  • Neil Gorsuch: “If I thought that were true, I’d hang up the robe.” [on judges as politicians] (22:59)
  • Neil Gorsuch: “No, Senator. I would have walked out the door. It’s not what judges do.” [on whether Trump asked him to overrule Roe] (24:03–24:10)

• Change in Senate Rules:

  • To ensure confirmation, Republicans eliminated the 60-vote filibuster threshold—Gorsuch confirmed with 54 votes.
  • Susan Matthews: “...all this pageantry and performed civility didn’t really matter. Neil Gorsuch didn’t have to convince anyone to vote for him during the confirmation hearings. That’s because Senate Republicans had one more trick up their sleeves...” (26:22)

6. Gorsuch on the Bench: Early Days and Writing Style (28:30–31:55)

• Bench Demeanor & Aggressiveness:

  • Bucked tradition by quickly becoming a forceful and direct questioner.
  • Mark Joseph Stern: “That was not Justice Gorsuch.” (29:14)

• Writing Style (“Gorsuch Style”):

  • Initial opinions mocked for awkward, showy prose.
  • Mark Joseph Stern: "It was clunky and it was pretentious, and it included all these weird references..." (30:35)
  • Social media lampooned his writing with the hashtag #GorsuchStyle; over time, he improved.

7. Textualism’s Surprise: The Bostock v. Clayton County Decision (32:39–37:31)

• Case Summary:

  • Bostock involved whether Title VII’s prohibition on sex discrimination applies to LGBTQ+ employees.
  • Mark Joseph Stern: “...firing someone because they’re gay is firing them because of their sex...so that’s discrimination because of sex.” (33:42)

• Gorsuch’s Majority Opinion:

  • Delivered 2020’s landmark decision protecting gay and transgender workers under federal law—using strict textualism.
  • Mark Joseph Stern: “...the biggest victory for gay people since marriage equality, and...the biggest victory for transgender Americans in all of Supreme Court history.” (34:35)

• Conservative Backlash:

  • Religious conservatives and Republican politicians were furious, calling it "judicial activism."
  • Senator Josh Hawley: “...we need to totally re-evaluate our approach to judicial nominees on the right because this was a betrayal.” (35:22)

8. Gorsuch’s Consistency and Limits (37:31–39:54)

• Philosophical Consistency:

  • In both Bostock and the frozen trucker case, Gorsuch followed the letter of the law, whatever its ideological result.
  • Mark Joseph Stern: “I think he relished this opportunity to show...‘I’m super, super committed to this approach, and even if it takes me pretty far to the left, I’m gonna follow it wherever it goes.’” (37:15)

• Boundary of Gorsuch’s Approach:

  • While he showed commitment to textualism in Bostock, his later votes (against transgender rights in healthcare access, for example) did not always favor liberal outcomes.

• Relationship with Trump:

  • Gorsuch at times diverged from Trump’s interests, especially on issues like deregulation and use of federal power.
  • “You might have heard that Neil Gorsuch ruled against Trump in the tariffs case. It made Trump really mad. I bet it made Gorsuch pretty happy.” (39:54)

9. The Larger Legacy and Institutional Crisis (40:57–47:07)

• Court’s Crisis of Legitimacy:

  • Scandals and norm-shattering nominations (Kavanaugh’s combative hearing, the hypocrisy over Amy Coney Barrett’s rushed confirmation) have tarnished SCOTUS’s reputation, while Gorsuch’s lower-profile tenure allows him to avoid similar scrutiny.
  • Mark Joseph Stern: “I would be shocked if a majority of Americans could identify him or even name him.” (43:14)

• Gorsuch’s Calculated Non-Partisanship:

  • Despite charting a strongly conservative course on many issues, Gorsuch is careful to cultivate a public image of principled non-partisanship.
  • Mark Joseph Stern: “He does have partisan instincts, to my mind, but they don’t always win out.” (40:25)
  • Susan Matthews: “But perhaps the most memorable thing about him is that he’s an operator, one who’s great at acting like he’s not an operator at all. And that’s how he gets away with it.” (46:39)
  • Liz Pleshette: “Be careful of the nicest guy on the planet. That’s what I would say.” (47:07)

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Notable Quotes & Timestamps

• "Scalia was larger than life. He was the intellectual leader of the conservative wing of the court." – Mark Joseph Stern (02:33)
• "Originalism is how you read the Constitution and textualism is how you read all other laws...you just go with what they literally wrote down." – Susan Matthews (05:16)
• "It was unthinkable at the time, this had never been done before, to say we're just going to leave this seat open indefinitely." – Mark Joseph Stern (10:43)
• "He said, ‘well, nothing. I’m right.’ All I got out was, well..." – Robert Federer on Gorsuch’s aggressiveness in the frozen trucker oral argument (14:52)
• "He was pretty hostile." – Robert Federer (15:05)
• "He restates again and again which words are in the statute and which aren’t. He quotes the dictionary at the reader. His tone is weirdly rude." – Susan Matthews on Gorsuch’s dissent (15:37)
• "If I thought that were true, I’d hang up the robe." – Neil Gorsuch [on judges being politicians] (22:59)
• "No, Senator. I would have walked out the door. It’s not what judges do." – Neil Gorsuch (24:10)
• "He was very direct when he thought someone should be appealing to Congress, not the Court." – Susan Matthews (29:50)
• "It was clunky and it was pretentious, and it included all these weird references..." – Mark Joseph Stern (30:35)
• "Title VII protects gay and transgender employees. That it is impossible to discriminate against someone for being gay or transgender because of sex." – Mark Joseph Stern (34:35)
• "Be careful of the nicest guy on the planet. That’s what I would say." – Liz Pleshette (47:07)

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Memorable Moments & Turning Points

• Gorsuch’s “Folksy” Confirmation Hearing:
  His mild-mannered, Jimmy Stewart-esque performance contrasts sharply with the high stakes of the stolen seat.

• The Frozen Trucker Dissent:
  Both for its outcome and tone, this case becomes emblematic of Gorsuch’s rigid textualism—earning him both a spot on Trump’s shortlist and the ire (and later, derision) of those affected.

• Bostock v. Clayton County:
  Gorsuch writes the majority opinion that expands LGBTQ+ employment rights, a ruling that infuriates the right but demonstrates his fealty to legal principle, not just ideology.

• Senate’s Change of Rules:
  The filibuster is dissolved to ensure Gorsuch’s seat—forever altering confirmation procedures.

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Timestamps for Key Segments

| Time | Segment | |-----------|-----------------------------------------------------------| | 01:03–02:16 | Scalia’s death and its immediate impact | | 03:23–06:04 | Originalism, textualism, and Gorsuch’s philosophical roots | | 09:31–12:04 | The Garland blockade and the 2016 election shock | | 13:03–19:46 | The frozen trucker case and Gorsuch’s 'audition' | | 19:46–27:00 | Confirmation, Senate rule change, Republican strategy | | 28:30–31:55 | Early days on the Court and public reaction to Gorsuch’s writing | | 32:39–37:31 | Bostock v. Clayton County and conservative backlash | | 37:31–39:54 | The limits of Gorsuch’s textualism and Trump divergence | | 40:57–47:07 | Court’s reputation, Gorsuch’s calculated non-partisanship |

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Closing Thoughts

The episode persuasively argues that Gorsuch is the embodiment of a new breed: a judicial operator who remains enigmatic and unpredictable, using the rhetoric of legal principle and humility to mask the calculated, highly strategic ascent and use of power at the Court’s pinnacle. The “stolen seat” controversy reveals the ever-thinning line between law and politics at the highest levels—a tension Gorsuch navigates with textbook civility and, at times, genuine independence.

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Next Episode Teaser (47:14)

• Mark Joseph Stern and Dahlia Lithwick return to unpack more of Gorsuch's key cases and relationships with other justices: “You won’t want to miss it.”
• Neil Gorsuch: “I don't think that progressives who are looking for the surprise savior of the rule of law should be like betting on the pony that is Neil Gorsuch.” (47:25)

Transcript

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[Susan Matthews]

Do you remember where you were when you heard that Justice Scalia died?

[Mark Joseph Stern]

Well, yes, of course. I was on vacation in St. Martin on the French side with my now husband and we had just finished dinner. It was later in the day when the news broke.

[Susan Matthews]

That's my colleague, Mark Joseph Stern. He, he covers the Supreme Court. Firstly, I knew he would remember exactly where he was when he learned of Scalia's death.

[Mark Joseph Stern]

And Nina Totenberg, by the way, NPR correspondent, was in the Virgin Islands. This happened during a break when a lot of Supreme Court reporters go on vacation and justice is too. Justice Scalia was on a hunting vacation. And I remember it was wild news.

[Susan Matthews]

Antonin Scalia was 79 years old, which, yeah, it's old, but no one was expecting him to die. Like Mark says, he was on vacation and one morning he didn't make it down for breakfast. He had died overnight of a heart attack. Journalists everywhere started scrambling to get the news out.

[Mark Joseph Stern]

There was one spot in our room, it was actually on the balcony where I could get WI fi. And so I was like writing stories and like emailing and stuff, standing on a chair, holding my laptop up in the air, trying to get the WI fi signal. It was a crazy time.

[Susan Matthews]

It's a big deal when any Supreme Court justice dies. But Antonin Scalia was not just any Supreme Court justice. I mean, listen to this guy.

[Neil Gorsuch]

In this job, it's garbage in, garbage out. If it's a foolish law, you are bound by oath to produce a foolish result.

[Mark Joseph Stern]

Justice Scalia was larger than life. He was the intellectual leader of the conservative wing of the court.

[Susan Matthews]

Scalia was also the man who helped start the new conservative movement that took off while Neil Gorsuch was still in law school. In the early 1980s, when Scalia was a law professor at the University of Chicago, he became one of the first faculty members to advise the then nascent Federalist Society. He was elevated to the Supreme Court a few years later, in 1986. Scalia then toured various law schools talking about the ideas he was bringing to the Supreme Court. He visited Harvard Law School while Gorsuch was a student there. And Scalia's judicial philosophy was a huge influence on Gorsuch. But that isn't surprising because as Mark says, Scalia influenced everyone.

[Mark Joseph Stern]

Before Scalia joined the Court, it would really look at values. It would say, what does the freedom of speech mean? What does equality mean, really? It was trying to think, how do we fit this value of equality to this modern day problem.

[Susan Matthews]

This way of reading the law is called intentionalism, trying to figure out what the intent of laws were as you apply them.

[Mark Joseph Stern]

Scalia came on the court and he said, no, that is not what we do. What we do is figure out how people understood this constitutional provision at the time. And we apply that rigidly to the problem that we face today.

[Neil Gorsuch]

It's what, what did the words mean to the people who ratified the Bill of Rights or who ratified the Constitution

[Susan Matthews]

as opposed to what people today think

[Neil Gorsuch]

it means, as opposed to what people today would like.

[Susan Matthews]

It's a literal reading of the law, a method known as originalism.

[Mark Joseph Stern]

So we don't just ask, what is equality? We say, what was equal protection understood to mean when the 14th amendment amendment was ratified in 1868? And we just transpose that meaning to the problems that we face today. No changes.

[Susan Matthews]

I'm going to level with you. This kind of judicial philosophy stuff is only interesting to lawyers. It's confusing and it's also boring. I know, I'm sorry. Unfortunately, we need to understand this to understand Gorsuch and what he's up to. So stick with me here. This is the easiest way I can break this down. There are two brother philosophies that Scalia championed. Originalism and textualism. They're basically the same thing, except originalism is how you read the Constitution and textualism is how you read all other laws and statutes. We talk about originalism the most when it comes to scotus because they're the ones who are tasked with really deciding what the Constitution means. Both ideas instruct that. Rather than trying to figure out what the people drafting these rules were trying to say, you just go with what they literally wrote down. That's all that matters. Scalia's obsession with this way of reading the law made the Supreme Court more conservative over his nearly 30 year tenure. I mean, think about it. If you have to go off of what was written down hundreds of years ago. It's not going to be progressive. But after Scalia's death, this was all poised to change. It was 2016. Barack Obama was still president. According to the Constitution itself, Obama would be the one to pick who would replace Scalia on the bench. So what was your first thought with Scalia, you know, dying and obviously leaving the court?

[Mark Joseph Stern]

That we would have a 5 to 4 liberal majority. It really seemed unthinkable that the Republican Senate would completely block Obama appointee to the seat.

[Susan Matthews]

It seemed unthinkable until it wasn't. This is Slow Burn Becoming Justice Gorsuch. I'm your host Susan Matthews. Last episode we met a young Neil Gorsuch, child of divorced parents with opposing political views. We learned that Neil was probably deeply influenced by how he saw his mother treated by congressional Democrats in D.C. and how, as a young conservative in the 1980s, he learned how to argue with liberals as a student at Columbia. In this episode, we'll learn how Neal got to the national stage and all the norms that he broke along the way. We'll talk about how his perfectly practiced civility kept him above the partisan fray. And we'll try to understand how he uses his power on the highest court in the land. This is episode two. The Stolen Seat.

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[Susan Matthews]

When Antonin Scalia died suddenly In February of 2016, Barack Obama was tasked with replacing him on the bench. In March of that year, he nominated Merrick Garland to be the next Supreme Court Justice.

[Narrator/Advertiser]

The men and women who sit on the Supreme Court are the final arbiters of American law. They safeguard our rights. So this is not a responsibility that I take lightly.

[Susan Matthews]

But Republicans were in the majority in the Senate led by Mitch McConnell, and the majority controls the Senate's Judiciary Committee. So they simply refused to allow Obama's nominee to start the confirmation process. They just stonewalled for months.

[Narrator/Advertiser]

Last night Senate Majority Leader Mitch McConnell

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said it would be a waste of

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time to meet nominee Merrick Garland and

[Susan Matthews]

insisted that Congress must wait until Americans

[Narrator/Advertiser]

elect a they will not be voting on this nominee.

[Neil Gorsuch (Interview)]

The next president's gonna make the decision.

[Mark Joseph Stern]

They were happy to just sort of sit by and let Mitch McConnell's strategy of a total blockade play out.

[Susan Matthews]

My colleague Mark Joseph Stern was back from vacation and watching in disbelief as this unfolded in Washington.

[Mark Joseph Stern]

I mean it, it was unthinkable at the time, this had never been done before, to say we're just going to leave this seat open indefinitely because we don't think the current president has any right to fill it. And that was

[Susan Matthews]

Republicans ostensible argument for the blockade was that a new justice should not be added to the court in an election year. This was basically an excuse they used as cover to do whatever they wanted because when Scalia died, Obama still had almost an entire year left in office. Still, by the fall of 2016, it seemed like it might be fine for Democrats to just wait it out. Conventional wisdom said Hillary Clinton would win the election easily. So even if Obama couldn't fill Scalia's seat, it seemed like Hillary would have the opportunity. We all know how that turned out.

[Narrator/Advertiser]

Unlike anything we've seen in a lifetime

stunning election upset in American political history.

[Neil Gorsuch (Interview)]

President Elect of the United States of America.

[Narrator/Advertiser]

We're going to get to work immediately

[Mark Joseph Stern]

for the American people.

[Susan Matthews]

You'll be so proud at what point on election night, did you realize when Donald Trump was winning, what this meant for the court?

[Mark Joseph Stern]

Immediately, it was my first thought.

[Susan Matthews]

And so, in the wake of one of the biggest election upsets in history, there was another upset, too. Liberals went from thinking they were about to finally secure an advantage on the court to realizing conservatives had locked in their dominance for the foreseeable future. This turned out to be just the beginning of a swing toward a conservative supermajority at the high court, a shift with profound implications for the future of America. In the aftermath of the Senate blockade of Obama's nominee, now Trump would get to select his own nominee. He'd been preparing for this task all campaign season. Judges all across the country had been auditioning to be Trump's pick. They did this by demonstrating just how conservative their rulings could be. One case in particular would prove to be a perfect opportunity. A case about a trucker who had faced an impossible situation on a freezing night in Illinois.

[Narrator/Advertiser]

It's the only case I ever argued in the 10th Circuit.

[Susan Matthews]

That's Robert Fedder. He's a labor lawyer. And in the summer of 2016, he was tasked with arguing this case in front of the 10th Circuit. His client was Alphonse Madden, the trucker we told you about in the previous episode, who had been fired from his job all the way back in 2009 for abandoning his trailer because he thought he might freeze to death. Madden and Federer had been on a winning streak, but the trucking company kept appealing. Eventually, it got all the way to the 10th Circuit.

[Narrator/Advertiser]

When you go to a circuit court to argue, you're on a docket that may include eight cases, a whole bunch, and they just go in successive order and you just know you got to show up at 9 o'.

[Mark Joseph Stern]

Clock.

[Narrator/Advertiser]

You don't know what order it's going to be once you get there at 9 o'.

[Mark Joseph Stern]

Clock.

[Narrator/Advertiser]

But when you get there, you learn, and I learned that we were the last one of that morning. So I got to watch the other arguments.

[Susan Matthews]

There were three judges from the 10th Circuit hearing arguments that day. One of them was Neil Gorsuch.

[Narrator/Advertiser]

And the other arguments, I don't remember there being anything overly controversial. I don't remember Judge Gorsuch being overly active in any of those cases.

[Susan Matthews]

Then came time for the frozen trucker case. Bob's co counsel was the first to speak. And suddenly the energy in the courtroom changed.

[Narrator/Advertiser]

Often the judges have a particular decorum that will allow you to get some of your argument out. Judge Gorsuch did not allow that attorney to ever get his argument in, because as he was answering any question that Judge Gorsuch had asked, he was immediately interrupting him and asking another question.

[Susan Matthews]

Judge Gorsuch was cutting off Federer, too. Fedor describes starting to answer one of the judge's questions, saying, well, and that

[Narrator/Advertiser]

was just enough of a pause. He said, well, nothing. I'm right. All I got out was, well,

[Susan Matthews]

how unusual is that? Had you ever had that situation before with a circuit court judge?

[Narrator/Advertiser]

No, he was. He was pretty hostile.

[Susan Matthews]

Still, even after how aggressive Gorsuch had been during arguments, the other two judges ruled in Madden's favor. Federer and Madden won the case. Like we told you last episode, Neil Gorsuch dissented. But it wasn't just Gorsuch's reasoning that surprised Robert Federer. It's the way he wrote his decision.

[Narrator/Advertiser]

What surprised me was kind of the tenor of the dissent, that it was written at such a elementary level on these issues that are important philosophically.

[Susan Matthews]

I've read the dissent, and I have to agree. Gorsuch restates again and again which words are in the statute and which aren't. He quotes the dictionary at the reader. His tone is weirdly rude. One law professor described it as arrogant and callously written. It would be months before Fetter would realize one of the reasons Neil Gorsuch might have taken such a specific approach in his dissent.

[Narrator/Advertiser]

I'm sitting in my living room before dinner with my family, and I'm working on something on my computer, and in the background is the news, and something comes out and it says, trump came out with this nomination for Neil Gorsuch. Didn't ring a bell at this point.

[Susan Matthews]

It was January of 2017, and I

[Narrator/Advertiser]

thought, oh, great, well, let's see who this guy is. And in the interim, I get an email from the Michigan Democratic Party, and, well, let's see what the Michigan Democratic Party has to say about this guy, right? And I read the email, and it goes through a couple specific cases that he had, and then it says that he dissented in a case where a truck driver nearly froze to death.

[Susan Matthews]

Feder had honestly kind of forgotten about it. They'd won the case that summer and he'd moved on.

[Narrator/Advertiser]

When you're a practicing lawyer, you know you're onto the next thing, right? I mean, I have at any time, I have another, you know, 40 cases that are going on that I'm working through, litigating those issues, and you're just on to the next issue now.

[Susan Matthews]

It was all coming back to him.

[Narrator/Advertiser]

Then I was like, oh, that's My case, I was like, I thought something that I can't say, but that I

[Susan Matthews]

shouldn't say, but you can say it.

[Narrator/Advertiser]

In my mind, I thought, oh, it's that asshole.

[Susan Matthews]

And not just, oh, it's that asshole, but also, oh, that's why he wrote such a pedantic, absurd dissent in my case. When Gorsuch was ruling in the frozen trucker case, he didn't try to think about the trucker's point of view or what the Department of Labor wants for workers. He just looked at what the actual text said and was like, well, it says he could have refused to drive the truck, but he drove the truck. So that's it.

[Narrator/Advertiser]

This was a wonderful case to show that you believe in textualism.

[Susan Matthews]

There's the boring legal philosophy again. Textualism is how Neil Gorsuch got to such an absurd on its face ruling. He looked only at the words on the page and ignored everything else. There may have been a reason why Neil Gorsuch wanted to prove he was such a strict textualist. In the lead up to the 2016 election, Trump had to convince a lot of establishment Republicans to get behind his run for president. One way he did this was by promising to appoint a Supreme Court justice, just like Antonin Scalia. So he released lists of who he might appoint to show how conservative they were. Back in the spring, when Trump released his first list, Gorsuch wasn't on it.

[Narrator/Advertiser]

And after the decision comes out, Neil Gorsuch now shows he's such a great textualist that he's willing to screw over this worker who nearly died and have no sympathy whatsoever. And he is able to use that to get onto the next list for possible candidates to the Supreme Court.

[Susan Matthews]

Gorsuch has maintained that he wasn't auditioning for SCOTUS.

[Neil Gorsuch (Interview)]

I remember very clearly sitting in the summer of 2016 with a friend at lunch, and he said, oh, it's such a pity your name's not on this list. And I said, oh, gosh, don't. I'm so happy in Colorado. Leave me alone. I'm fine.

[Susan Matthews]

Just one month after the frozen trucker case, Donald Trump's campaign put out a revised list of who he would consider for SCOTUS if he were to win the presidency. This time, Neil Gorsuch made the cut. We know what happens after that. Donald Trump is elected. Mitch McConnell's blockade pays off. Neil Gorsuch is nominated to Antonin Scalia's seat.

[Liz Pleshette]

I remember some email and some social media kind of blowing up that was connected to the friends I had at Columbia.

[Susan Matthews]

Remember Liz Pleshette? She was Neil Gorsuch's freshman floormate at Columbia.

[Liz Pleshette]

At least in the Columbia community. There was a lot of my cohort and classmates and oh, like, isn't this. People were blowing up and saying, isn't this great?

[Susan Matthews]

But Liz did not think it was great.

[Liz Pleshette]

And I was very clear and almost visceral. And I said, why is this great? Because he has a degree from the same place you have a degree from. And everybody didn't have an answer. They just was like, yeah, he's one of our own. Go lions. And it was this really weird school pride thing, as if everybody was dismissing what Neil represented and what he had been very clear and vocalized from the age of 18 on. Anybody who knew him when he was young knew he had an agenda.

[Susan Matthews]

Let's zoom out a little bit here. We need to talk about what this agenda was and how it aligned with what Republicans were up to. Remember what we talked about in our last episode. Back in the 1980s, conservatives had basically had it with the Supreme Court. Liberals were getting all of these favorable rulings thanks to the civil rights movement and the women's movement. The last straw was Roe v. Wade. It was that ruling that made conservative leaders decide to do something about the courts. Today we think of abortion as one of the most politically charged topics out there, incredibly split across partisan lines. But historically, it wasn't like this. Conservatives made it a partisan issue because they realized it would help them take power back in the courts. They used extremely graphic language and political messaging to get Republicans activated about this. And it worked. It created a lot of single issue voters. Meanwhile, Democrats were still trying to compromise after Antonin Scalia's death. Obama picked Merrick Garland because he was such a moderate judge. He's not someone who would radically change the court. He would play by the rules.

[Narrator/Advertiser]

To find someone who just about everyone not only respects but genuinely likes that is rare.

[Susan Matthews]

Merrick Garland never stood a chance. Republicans didn't care if the nominee would play by the rules. Their criteria was very different. Remember, they were looking to seat someone who would overturn Roe v. Wade. They felt that with Gorsuch, they had that guy. I mean, Liz Pleshette could have told them as much, but they didn't want to make it so obvious that this was what they were up to. Because even though they'd made this a huge cause in their world, it wasn't popular with Americans overall. So they needed someone who could perform the role of a mild mannered judge who was just here to call balls and strikes. And Neil Gorsuch was perfect for that. This is from his opening statement on the first day of his confirmation hearing.

[Neil Gorsuch (Interview)]

Mr. Chairman, these days we sometimes hear judges cynically described as politicians in robes, seeking to enforce their own politics rather than striving to apply the law impartially. But if I thought that were true, I'd hang up the robe.

[Susan Matthews]

Remember how Liz said that even in college, Neil Gorsuch seemed like he was 40 years old? Well, by the time he was being nominated to the Supreme Court, he actually was in his 40s. He still had his good hair, only now it was silver, lending him gravitas. And he still sounded like Jimmy Stewart. Only now that, gosh, golly, politeness would be the perfect way to deflect from the tough questions he'd be asked during his confirmation hearing. All that emotionless debating, it was about to pay off. Neil Gorsuch played his part perfectly during the confirmation hearings. He was buttoned up and composed and ready with perfect answers to each question. Here he is with Senator Lindsey Graham.

[Neil Gorsuch (Interview)]

Had you ever met President Trump personally? Not until my interview.

[Mark Joseph Stern]

In that interview, did he ever ask

[Neil Gorsuch (Interview)]

you to overrule Roe v. Wade? No, Senator.

[Mark Joseph Stern]

What would he have done if he had asked?

[Neil Gorsuch (Interview)]

Senator? I would have walked out the door. It's not what judges do.

[Susan Matthews]

Senator Al Franken tried to throw Gorsuch off his game. He had some questions about Merrick Garland.

[Narrator/Advertiser]

I think you're allowed to talk about

[Susan Matthews]

what happened to the last guy who was nominated in your position.

[Narrator/Advertiser]

You're allowed to say something without being

[Susan Matthews]

about getting involved in politics.

[Neil Gorsuch]

You can express an opinion on this.

[Neil Gorsuch (Interview)]

Senator, I appreciate the invitation, but I know the other side has their views of this. And you, your side has your views of it. That, by definition, is politics. Okay. And, and, And, Senator, judges have to stay outside of politics.

[Susan Matthews]

Throughout his confirmation hearing, Neil Gorsuch deployed his folksy demeanor with this kind of perfectly pitched disbelief that there could be any controversy surrounding him and this nomination.

[Neil Gorsuch (Interview)]

I try to live under a shell during the campaign season, watch baseball and football go about my business.

[Susan Matthews]

But Neil Gorsuch doesn't live under a shell. As soon as he was nominated, he knew what he had to do.

[Mark Joseph Stern]

We do know that his first call after being nominated was to Merrick Garland. He allegedly had real respect for Merrick Garland, and so I guess he tried to soothe his feelings or something.

[Susan Matthews]

This is sort of incredible to me. Throughout the hearings, Gorsuch kept saying that Garland's misfortunes had nothing to do with him. But he knew exactly what was happening. He knew he was taking Merrick Garland's seat. This is the exact same pattern that happened with the seat overall. First, Republicans used such strong political power to muscle their guy in, and then that guy spent his entire confirmation hearing saying, well, gosh golly, judges aren't political. We just read the law.

[Liz Pleshette]

Neil Gorsuch is the person who taught me that civility is not the end goal. It is often masking something and behaviors and attitudes that are very uncivil.

[Susan Matthews]

In the end, all this pageantry and performed civility didn't really matter. Neil Gorsuch didn't have to convince anyone to vote for him during the confirmation hearings. That's because Senate Republicans had one more trick up their sleeves. To make sure they got their guy on the court, they changed the rules. Normally it takes 60 votes to confirm a judge to SCOTUS, but Republicans knew they weren't going to get enough Democrats to collaborate with them, not after what they'd done to Merrick Garland. So they eliminated that standard. Neil Gorsuch was confirmed with 54 votes out of 100.

[Neil Gorsuch (Interview)]

The nays are 45. The nomination of Neil M. Gorsuch of Colorado to be an Associate justice of the Supreme Court of the United States is confirmed.

[Susan Matthews]

We'll be right back.

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[Susan Matthews]

Supreme Court cases are all heard in the same room at 1 First street in Washington. If you've never been there, the room is spectacular. It has these beautiful deep red and black marble Floors and honey colored marble columns. Just beyond those columns are thick scarlet curtains. The nine Justices emerge from behind them, then sit at an angled mahogany bench. They sit by seniority, the chief in the middle. When Neil Gorsuch joined the Court, he was an Associate justice and the newest. So he sat at the end of the bench during oral arguments. Historically, freshmen Justices acted with a certain deference. Here's my colleague Mark Joseph Stern again,

[Mark Joseph Stern]

new Justices, like, they showed some humility. They were still settling into the place. They didn't have the wisdom of Justices who had served for years. And so they often were a little bit quieter, a little bit less confrontational. That was not Justice Gorsuch.

[Neil Gorsuch (Interview)]

Wouldn't it be a lot easier if we just followed the plain text of the statute? What am I missing?

[Mark Joseph Stern]

So I think from the start, he was a pretty active and aggressive questioner from the bench. I think it's fairly read. It's not elegantly drafted, but I think it's fairly read to allow that. And let me give you a couple of reasons. Let me give you a couple reasons where.

[Narrator/Advertiser]

Yes.

[Neil Gorsuch (Interview)]

Not reasons where. In the language.

[Mark Joseph Stern]

Absolutely. So we start with a general rule

[Susan Matthews]

that says another thing about Justice Gorsuch. He was very direct when he thought someone should be appealing to Congress, not the Court.

[Mark Joseph Stern]

You know, the Supreme Court is directly across from the US Capitol, and he'll tell a lawyer arguing before him, it sounds like your arguments are better addressed across the street. You know, go to the Capitol and lobby them like, we're not the ones who should be fixing this law.

[Susan Matthews]

He had put on a display of humility during the confirmation hearing, but by the time he got to the bench, that quickly curdled into more of a know it all attitude. And why not? Once a Justice gets to the Supreme Court, they have the job for life. People like Mark who have to read everything the Justices write, immediately started to notice what a Gorsuch opinion sounded like.

[Mark Joseph Stern]

It was clunky and it was pretentious, and it included all these weird references that didn't really click together with the legal arguments. His very first opinion, which was a unanimous decision, was about this law called the Fair Debt Collection Practices act, which is about, like, seedy collection practices. And it began with this sentence, disruptive dinner time calls, downright deceit. And more besides drew Congress's eye to the debt collection industry. And I'm just like, dude, like, you don't have to pretend like you're writing a children's storybook about the Fair Debt Collection Practices Act.

[Susan Matthews]

Luckily for the rest of Us. Mark gets paid to read these decisions so we don't have to.

[Mark Joseph Stern]

And it was like, oh, God, this guy is just going to be unbearable to read. I was like, reconsidering. Do I even want this job if I'm going to have to spend the rest of my life reading this guy's awful prose? It was not good.

[Susan Matthews]

Mark was not the only one who noticed. Soon, complaints about the newest justice's writing were all over Twitter with the hashtag Gorsuch style. It was even covered by the New York Times. Fortunately, it was short lived.

[Mark Joseph Stern]

I'm sure he would never admit that he was influenced by the press or by all the mockery of Gorsuch style. But it did seem like he calmed down and started to hone his writing. And it became a lot better.

[Susan Matthews]

When he settled down, Neil Gorsuch started to establish himself. Remember, he had big shoes to fill. He was in Antonin Scalia's seat. And at first it seemed like he was showing Republicans that all their efforts to get him that seat were paying off. But after his first few terms, he started to show just how seriously he took his dedication to originalism and textualism. You'd think that could only be positive for conservatives, but that's not how it turned out. One of the first cases that shows this unexpected side of Justice Gorsuch was decided in 2020. The case is called Bostock vs Clayton County. I asked Mark to walk us through it, since he's the expert here.

[Mark Joseph Stern]

So Bostock was actually a consolidation of several cases brought by employees who had been fired because they were gay or transgender. And they argued that those firings were illegal under Title VII of the Civil Rights act of 1964, which prohibits most employers from firing someone because of sex. That's the language here. Because of sex.

[Susan Matthews]

The question at the heart of Bostock was who Title VII of the Civil Rights act protected. On the one hand, when it had been written back in 1964, Congress was mainly looking to protect women. There was no discussion of gay or transgender workers.

[Mark Joseph Stern]

The lower courts have really split on this. You had some courts that said, look, this is about just sort of like whether you're a man or a woman. And really Congress was trying to protect women from being fired because they're women. And so this should not be expanded to gay and transgender employees, because that's just not what Congress was thinking.

[Susan Matthews]

But then there was another way of looking at it.

[Mark Joseph Stern]

You had other courts saying, no, if you really sort of just isolate the text and apply it, then firing someone because they're gay is firing them because of their sex. Because, you know, you're saying, oh, you're a man, you're not allowed to marry a man, but if they were a woman, you wouldn't have any problem with them marrying a man. So the problem there is their sex. And if you change their sex, then you wouldn't fire them. So that's discrimination because of sex. Very similar thing with transgender employees. And some of these courts said that is discrimination because of sex that falls under Title vii.

[Susan Matthews]

Looking at the text in this way is what originalism and textualism call for. And as we know, Gorsuch is an originalist and a textualist. The question was, would Neil Gorsuch be so committed to his legal theory when the outcome was a liberal one? It turned out that he would.

[Mark Joseph Stern]

In this decision in Bostock, by a 6 to 3 vote, with Gorsuch and the Chief justice joining the then four liberals, Gorsuch writes that, yes, Title VII protects gay and transgender employees. That it is impossible to discriminate against someone for being gay or transgender because of sex. That that act of discrimination always and inherently takes their sex into account. And that was, I mean, the biggest victory for gay people since marriage equality, and I still think the biggest victory for transgender Americans in all of Supreme Court history.

[Susan Matthews]

What's the reaction to Justice Gorsuch's opinion?

[Mark Joseph Stern]

Absolute fury on the right.

[Susan Matthews]

Nobody saw that Gorsuch would join the majority on this.

[Mark Joseph Stern]

This is judicial activism.

[Narrator/Advertiser]

The bargain that has been offered for years now is a bad one.

[Mark Joseph Stern]

Senator Josh Hawley gave the speech where he condemned the decision, and Gorsuch and was like, we need to totally re evaluate our approach to judicial nominees on the right because this was a betrayal.

[Narrator/Advertiser]

We're supposed to keep our mouths shut because maybe we'll get a judge out of the deal. It's not time for religious conservatives to shut up. No, it's time for religious conservatives to stand up and to speak out.

[Mark Joseph Stern]

You had a lot of Christian conservatives, religious conservatives, viewing this as a just appalling sop to the lefty culture wars.

[Susan Matthews]

Republicans had spent so much effort and political capital ceding their guy, and then he was the one offering the biggest victory for gay people since marriage equality. Why do you think Justice Gorsuch ruled this way in Bostock?

[Mark Joseph Stern]

I mean, I think that it has a lot of similarities to the frozen trucker case. It just comes out on a different side of, like, the political spectrum.

[Susan Matthews]

Gorsuch took the same approach. Just look at the words on the

[Mark Joseph Stern]

page, like in the Frozen trucker case, Gorsuch was saying, let's not look at this entire statute or the legislative history or what this federal agency says or what that agency says. Let's just take these words out. And in Bostock, he says, again, let's not take in all this other context that may or may not bear on the meaning. Let's not try to figure out what Congress was intending, maybe on our subjective guests, let's not defer to some agency or whatever. Let's just take out the words discrimination because of sex and ask what those mean. The word is the law, the law is the word, and nothing else matters. So I do think it was a consistent approach there.

[Susan Matthews]

Not only was he consistent in his approach to reading the law with Bostock, Mark thinks Justice Gorsuch actually enjoyed being able to use textualism to arrive at a result that was so liberal coded.

[Mark Joseph Stern]

I think he really liked it, and I think he relished this opportunity to show the whole world, like, I'm super, super committed to this approach, and even if it takes me pretty far to the left, I'm gonna follow it wherever it goes.

[Susan Matthews]

And what has his record been on gay and trans rights since?

[Mark Joseph Stern]

Not so good, actually. I suspect he did not anticipate the backlash of Boston.

[Susan Matthews]

This was a demonstration of a commitment to a legal philosophy. It was not a show of support for gay and trans rights. One thing that likely affected the reaction to Bostock and then Gorsuch's reaction to that reaction is that gay and trans rights have become a much more volatile political football since 2020. Back then, it seemed like protections like this would only continue to grow. But now the culture wars have zeroed in on trans rights as the new threat to conservative values. This term, the Supreme Court has taken it upon themselves to decide whether trans women can play women's sports. So how will Neil Gorsuch rule? On the one hand, the legal issues demand similar reasoning as Bostock. If Justice Gorsuch wants to show his consistency and his commitment to textualism and originalism, he should allow trans women to play women's sports. But he's already shown indications that he won't. In last year's big case about transgender rights, which was about health care access, he ruled against the rights of trans people. But he didn't explain why he was ruling against them. He just signed his name to the Chief Justice's opinion that allowed states to restrict access to health care care. So Justice Gorsuch could go in either direction. But one factor that probably isn't weighing too heavily on him is what Donald Trump wants him to do. In the past few years, Gorsuch and Trump have sort of split. Mark says that's because Trump's interests have changed.

[Mark Joseph Stern]

I think what's so interesting in this moment is that in Trump's first term, it was all about deregulation and destroying the administrative state. So Gorsuch was pretty aligned with Trump. But now Trump isn't so eager in dismantling the administrative state. He wants to co opt it for his own purposes. He wants to tell CBP and the Department of Commerce, cook up some pretext for me to slap billions of dollars on tariffs on imported goods and let's see if we can get away with it. His desires as president in his second term are sometimes kind of contradictory to Gorsuch's jurisprudence.

[Susan Matthews]

You might have heard that Neil Gorsuch ruled against Trump in the tariffs case. It made Trump really mad. I bet it made Gorsuch pretty happy. He loves to defend the Constitution and he loves to prove that he's not a partisan.

[Mark Joseph Stern]

And so the tariffs was a great test case because Gorsuch was able to come down in a kind of thundering way and say, no, no, no, I didn't let Biden get away with this. I'm not going to let Trump get away with this.

[Susan Matthews]

All libertarians love to do this. And if I really had to pin down Neil Gorsuch's politics, that's where I'd put him.

[Mark Joseph Stern]

He holds many beliefs that I do not. He holds many views about the law that I think are quite wrong. But I do think he holds real views and principles, like he's not just a partisan. He actually does have a coherent judicial philosophy that sometimes, not always, but sometimes he applies fairly and consistently in a way that can hurt conservative causes and Republican presidents and Republican politicians. He does have partisan instincts, to my mind, but they don't always win out.

[Susan Matthews]

Neil Gorsuch wants to prove that he's not a partisan hack. That's particularly important right now because SCOTUS is having a crisis in credibility. There are a lot of reasons for this. Part of it is the unpopular rulings that they've been handing down. But part of it is how naked the grabs for power on the court have been. I mean, think about Trump's two other nominees. First, Brett Kavanaugh's nomination was upended by Christine Blasey Ford's accusations of sexual assault from their teenage years. Kavanaugh's angry performance during the confirmation hearing itself became the most visceral confirmation battle since Clarence Thomas.

[Narrator/Advertiser]

This whole two Week effort has been a calculated and orchestrated political hit. You may defeat me in the final vote, but you'll never get me to quit. Never.

[Susan Matthews]

Amy Coney Barrett's nomination was also norm shattering. Not because of the nominee herself, but because of how it happened. Remember in 2016, Mitch McConnell said he wouldn't seat Obama's appointee because it was an election year. McConnell said they had to wait, wait until the election was over to pick the nominee. It was only fair to the voters. So he kept the seat open from February when Scalia died to after Trump was inaugurated. But then In September of 2020, Supreme Court Justice Ruth Bader Ginsburg died. It's fair to say that Justice Ginsburg was revered by the left in much the same way that Justice Scalia was an icon to the right. And yet, even though it was mere weeks before the election, so close that early voting had already started, Mitch McConnell did not hold himself to his own election year standard. No, he rushed through Trump's third nominee, changing the dynamic of the court for decades to come. Those confirmations were both much more dramatic, and the result is that now Justice Gorsuch gets to enjoy relative anonymity while his newer colleagues take the heat of Republicans partisan machinations. Mark agrees.

[Mark Joseph Stern]

Well, I would be shocked if a majority of Americans could identify him or even name him.

[Susan Matthews]

I don't have that problem. Neil Gorsuch is very familiar to me. For reasons that precede making this podcast, Gorsuch came into the news at a very specific time in my career as a journalist. I started working at Slate in March of 2016. It was about one month after Justice Scalia had died and before Donald Trump was a serious political candidate. I started here as the science editor, so I wasn't paying close attention. But after Trump's election, the editors at the magazine realized that legal battles were about to be a huge story. So they asked me if I would help out on Slate's jurisprudence desk. I started just as Neil Gorsuch was nominated to the Court. His was the first confirmation hearing. I watched. I've been watching ever since, because all of the political maneuvering to get all this power on the Supreme Court worked. And in exchange, the Court has handed down some truly stunning legal victories to conservatives. Their decisions haven't been very popular and the court knows this, so they've been playing defense. Here's Justice Gorsuch in a sit down interview with Major Garrett of CBS News, displaying those classic Neil Gorsuch debate skills.

[Neil Gorsuch]

There are people who watch this right now and say, I thought I understood what Roe vs. Wade meant in our country. I thought I understood what affirmative action in college admissions meant. And this court has told me I didn't understand what those things meant. And I wrongly relied on things that I thought were settled. What would you say to those?

[Neil Gorsuch (Interview)]

I'd say those are deeply complex legal questions on which reasonable minds can, of course, and do disagree. And then when it comes to Roe v. Wade, for example, what did the court decide? Decided that we, the people, should answer that question, not nine people sitting in Washington, D.C.

[Susan Matthews]

let's unpack this for a second because it sounds so reasonable. We didn't end the right to abortion or affirmative action. We're just letting you decide for yourselves. That argument is deceptive. It's not like the Court's rulings trigger a nationwide vote to figure out what the people think and then go with that as the law. America doesn't work like that. The reason the law exists at all is to protect the rights that are so fundamental to our lives, so inalienable, that they cannot be subject to these kinds of votes. That's why we have a Constitution with a Bill of Rights in the first place. And too many judges and lawyers and Supreme Court Justices tell us, while it's legally complex, regular Americans won't understand that's not true. That's just a cover to avoid having to answer for the choices they're making. We're doing this series because we deserve to understand our own rights. And in order to do that, we need to know who's making the rules. So who is Neil Gorsuch? Neil Gorsuch is an originalist and a textualist. Now you know what that means. Sometimes he follows those theories to a T, even if it means his ruling is absurd, like in the frozen trucker case, or liberal coded, like in Bostock. He's willing to rule against the president who nominated him, like he did with tariffs. He's also someone who has deeply held beliefs about things like the administrative state and abortion. He's figured out how to make those beliefs into law from his perch on the highest court in the land. But perhaps the most memorable thing about him is that he's an operator, one who's great at acting like he's not an operator at all. And that's how he gets away with it.

[Liz Pleshette]

Be careful of the nicest guy on the planet. That's what I would say.

[Susan Matthews]

Next time. Mark Joseph Stern returns, along with our colleague Dahlia Lithwick to break down some more key cases that will help us understand Justice Gorsuch's jurisprudence.

[Neil Gorsuch (Interview)]

I don't think that progressives who are

[Alltrails Advertiser]

looking for the surprise savior of the

[Neil Gorsuch (Interview)]

rule of law should be like betting on the pony that is Neil Gorsuch.

[Mark Joseph Stern]

Well, I just have to throw out here that he's not a pony himself, but he did have ponies on his hobby farm in Colorado, and he presented himself as like a true, true farmer during his confirmation hearing. He was at most the proprietor of a petting zoo.

[Susan Matthews]

We'll also get into his relationships with the other justices. You won't want to miss it. The Supreme Court isn't going anywhere. Neither is Slate's coverage of it. Slate plus is how you keep it going for yourself, for us, and for the Republic, we suppose Members get full ad free access to Slow Burn and every Slate Podcast, including our complete archive of past seasons. And your membership supports the kind of in depth court coverage you've been listening to the reporters, editors and producers who make Slate what it is every day. You can join from the Slow Burn show page on Apple Podcasts or Spotify [e-mail] SlowburnPlus if you want to hear that episode right now, join Slate Plus. You'll get early access to our third and final episode, plus full access to every season of Slow Burn, including season eight, Becoming Justice Thomas. And every Slate podcast will come to you ad free. And if that's not enough, by becoming a Slate plus member, you'll be supporting the work we're doing here at Slow Burn and across all of Slate. I'm talking about reporters, editors, producers, writers, and yes, the puzzle nerds who make our crosswords. If you think Supreme Court coverage is important right now, please support it. You can join right from the show page on Apple Podcasts or Spotify [e-mail] SlowburnPlus if you're a member already, thank you. If not, come join us. This episode of Slow Burn was written and reported by me, Susan Matthews. It was produced by Sophie Summergrad and edited by Hilary Fry, Mia Lobel and Evan Chung. Our supervising producer is Joel Meyer. Mia Lobel is the executive producer of Slate Podcasts. Our legal editor is Mark Joseph Stern. We had production help from Patrick Fort. Special thanks to Dahlia Lithwick and Sarah Burningham. Original music and sound design by Hannah Sproun. Natalie Matthews. Ramo created the artwork for this season. See you in episode three. Thanks for listening. SA.